Corruption - An article omitted in Indian constitution

Coverage of this Article

1. Introduction
- Introduction - Corruption is the most significant factor that destroys the Indian democracy, and every politician talks to fight against Corruption.

2. United Nation Convention Against Corruption
- In its General Assembly resolution 58/4 of 31 October 2003 United Nations Convention against Corruption adopted

3. The Prevention Of Corruption Act 1988
- This Special law was enacted on 09th September 1988 contains Five Chapters and 31 sections for offences of Corruption relating to Public Servants.

4. Central Vigilance Commission Act, 2003
- The Central Vigilance Commission Act, 2003 was enacted on 11th September 2003 containing Five Chapters and one Schedule with 27 sections.

5. Central Bureau Of Investigation
- The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India.

6. The Lokpal And Lokayuktas Act, 2013
- It shall make all efforts within its jurisdiction to serve the public interest and shall endeavor to use the powers vested in it to eradicate corruption in public life.

7. Need And Scope For Expansion Of Legal Framework For Corruption
- Despite availability of many stringent laws under Indian Penal Code, Criminal Procedure Code, Prevention of Corruption Act, and the Central Vigilance Commission.

Corruption is the biggest factor that destroys the Indian democracy especially and every single politician talks to fight against Corruption. Then who is the giver or who is the taker or who is the beneficiary? This finds no answers when the country experienced major scams involving the names of some members of Parliament and State Legislatures. The Constitution of India under Articles 105 and 194 provides privileges of Members of Parliament and State Legislatures whereas The Prevention of Corruption Act, 1988 is the first and the only composite legislation to book public servants for taking bribe and involved corruption. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the act came into force and was amended from time to time.  It was originally enacted in 1947 which was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX in the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct, Criminal Procedure Code, 1974 to enable attachment of ill gotten wealth obtained through corrupt means including from transferees of such wealth. Objective and Scheme of the Act was intended to make more effective provision for the corruption rampant amongst the public servants. It is therefore a social legislation defined to curb illegal activities of the public servants.

Corruption is defined as an act done with an intent to give some advantage inconsistent with official duty and the rights of others. It includes bribery, but is more comprehensive, because an act may be corruptly done, though the advantage to be derived from it be not offered by another. Secondly, Corruption is also understood something against law, as a contract by which the borrower agreed to pay the lender usurious interest.

Webster’s Universal Dictionary (1961) provides the meaning of the word 'corrupt' as (1) to make or become evil or morally bad, (2) to take. Or become impure. According to Webster’s the word 'corruption' means, as the act of corrupting or state of being corrupt. People often think that they are at the mercy of corruption and that it is just a “way of life”. However, every society, sector and citizen would benefit from saying

It is surprising that one cannot find a single word “Corruption” in the entire length and breadth of our Constitution document though the definition components contain words like Official Duty, Rights of others, bribery, something against law, evil, morally bad, impurity, etc. It therefore vindicates the fact that our sacred book of law is corrupt-free on all respects.

UNITED NATIONS CONVENTION AGAINST CORRUPTION

United Nations office on Drugs and Crime Vienna (UNODC) in its Convention introduced a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption. It called for preventive measures and the criminalization of the most prevalent forms of corruption in both public and private sectors. In its General Assembly resolution 58/4 of 31 October 2003 United Nations Convention against Corruption adopted:

(a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively;

(b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery;

(c) To promote integrity, accountability and proper management of public affairs and public property.

Seriousness of problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law. Corruption and other forms of crime, in particular organized crime and economic crime, including money laundering are always interlinked. Technology Optimization can play an important role in enhancing the ability of States, by strengthening capacity and by institution-building, prevent and combat corruption effectively, Illicit acquisition of personal wealth by Corrupt cause immense damages to democratic institutions, national economies and the rule of law. Prevention and eradication of corruption is a responsibility of every citizen and States and that they must cooperate with one another, with the support and involvement of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations. If their efforts  are to be effective, Principles of proper management of public affairs and public property, fairness, responsibility and equality before the law and the need to safeguard integrity is absolutely necessary.It is therefore the duty of every citizen to build a new generation that rejects corruption in every form to Safeguard development, strengthen democracy and to promote Justice to our democratic values.

India is a signatory to the United Nations Convention against Corruption .The commitment of the Government to provide clean and responsive governance is reflected in passing of the legislation and creation of the body of Lokpal, to contain and punish acts of corruption. The Secretary General of United Nations said on the adoption of the resolution by the Member States: "Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish. This evil phenomenon is found in all countries – big and small, rich and poor – but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development."

THE PREVENTION OF CORRUPTION ACT, 1988

This Special law was enacted on 09th September 1988 contains Five Chapters and 31 sections for offences of Corruption relating to Public Servants.  The Law specifically deals with Corruption offences like, Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence, Offence relating to bribing of a public servant or by a commercial organisation, Person in charge of commercial organisation to be guilty of offence, Public servant obtaining [undue advantage], without consideration from person  concerned in proceeding or business transacted by such public servant, Criminal misconduct by a public servant and the punishments thereof including attachment and forfeiture of property.

CENTRAL VIGILANCE COMMISSION ACT, 2003

Under the  Chairmanship of  Mr. Justice B. P. Jeevan Reddy (1997-2000) 15th Law Commission was constituted and it presented its 161st report recommending the Bill to enact The Central Vigilance Commission Bill, 1998 to confer upon Central Vigilance Commission the statutory status and to give statutory recognition to the functions of Central Vigilance Commission with a view to make it a more effective and efficient institution to undertake, guide and supervise investigations and inquiries into allegations of corruption against public servants and employees of the Public Sector. The Central Vigilance Commission Act, 2003 was enacted on 11th September 2003 containing Five Chapters and one Schedule with 27 sections. 

The genesis of this law lies in the judgement delivered by the Supreme Court of India in what is commonly known as the Havala Case   (Writ Petition (Criminal) Nos. 340-343 of 1993) The Court found that the CBI and other investigating agencies did not investigate cases properly whenever the alleged offenders were powerful persons gave directions to establish institutional and other arrangements aimed at insulating the CBI from outside influences with specific directions. However there were many differences between the Judgement, the Law Commission’s draft of The Central Vigilance Commission Bill, 1998 and the Ordinance of August 25, 1998 in terms of Powers of CVC & CBI and the Appointment

In the Annual Report for the period from 01.01.2018 to 31.12.2018 the Central Vigilance Commission has reported that there were 44 blatant deviations from the Commission’s advice or non-consultation with the Commission vitiates the vigilance process and weakens the impartiality of the vigilance administration. Many Departments/ Ministries like Railways, Banks,  though the Commission’s advised Major Penalty/Prosecution the action initiated by them is reported as “No Action, Minor Penalty, closure, exoneration, counselling, Administrative warning, Govt. Displeasure, charges dropped without Commissioner’s advice, etc. Hence the Law proved to be less effective and authoritative as procedures were laid down to facilitate deviation of recommendations.

CENTRAL BUREAU OF INVESTIGATION

The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. Of India during World War II. Superintendence of the S.P.E. was vested with the War Department. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. This Act transferred the superintendence of the SPE to the Home Department and its functions were enlarged to cover all departments of the Govt. of India. The jurisdiction of the SPE extended to all the Union Territories and could be extended also to the States with the consent of the State Government concerned.The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated 1.4.1963. Initially the offences that were notified by the Central Government related only to corruption by Central Govt. servants. In due course, with the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under CBI purview. Similarly, with the nationalization of the banks in 1969, the Public Sector Banks and their employees also came within the ambit of the Central Bureau of Investigation.

THE LOKPAL AND LOKAYUKTAS ACT, 2013

This law was enacted on 1st January 2014 containing 15 Chapters and schedule The Lokpal is the first institution of its kind in independent India,  to inquire and investigate into allegations of corruption against public functionaries who fall within the scope and ambit of the Act. The Lokpal of India is committed to address the concerns and aspirations of the citizens of India for clean governance. It shall make all efforts within its jurisdiction to serve the public interest and shall endeavor to use the powers vested in it to eradicate corruption in public life.

NEED AND SCOPE FOR EXPANSION OF LEGAL FRAMEWORK FOR CORRUPTION

Despite availability of many stringent laws under Indian Penal Code, Criminal Procedure Code, Prevention of Corruption Act, and the Central Vigilance Commission, the menace of Corruption is still prevalent in the society which hampers the welfare and growth of our society. Hence the following proposals are putforth to expand the scope of legal framework for elimination of corruption from our system:

1. To bring forth an appropriate amendment in the Constitution to address specifically to safeguard the citizens against Corruption and designate as a fundamental duty of State and as a fundamental Right against Corruption.
2. Preamble of the Constitution needs to explicitly contain to ensure a Corruption free society under its basic structure and to secure to all its citizens under Social, Economic and Political Justice, and Equality of Status and of opportunity and promotion of dignity of every citizen which is denied when there is rampant corruption in our society.
3. To review the recommendations put forth by the 161st Law Commission Report defining the powers of Central Vigilance Commission.
4. To take up an extensive study of the landmark verdict delivered by Supreme Court in the Havala Case (Vineet Narain & Others vs Union Of India & Another on 18 December, 1997 in Writ Petition (Criminal) Nos. 340-343 of 1993) and ensure implementation of all the recommendations in toto.
5. A specific time-frame should be given to adjudicate all pending corruption related cases against public servants and elected representatives.
6. Appointment of Heads for all the major agencies like CBI, CVC, ED, Lokpals, Lok Ayukthas, etc should be done with an enlarged committee comprising of representatives of all registered political parties, retired Judges of High Courts/Supreme Court and Police Chiefs, Civil servants having unblemished track record.
7. Police is often used or misused against Corruption as they are under the control of the Executive. A National Police Commission should be constituted under independent powers vested under the Constitution. The Chief of Central Police Commissioner must have an unblemished service track record in the IPS cadre having a minimum of 25 years having no political patronage or connection should be appointed by a Committee comprising of representatives of all registered political parties, retired civil servants and Judges of High Courts and Supreme Court, etc. He should be the Supreme Commander of the Police forces in the country who can be impeached only by the Parliament.  He need not report to any State or Central Executive Authority or any bureaucracy and function independently.  All State Police Commissioners should be appointed under similar committees set up in the respective States who should report only to the Central Police Commissioner. They are equivalent to the rank of Chief Justice. This independence would ensure direct attack for elimination of Corruption in the country.
8. All Election laws must be reframed to ensure not a single politician with corrupt track record convicted or under trial is eligible to file nomination for election to State Legislatures or Parliament. Once charges framed and trial underway he loses his eligibility for nomination.
9. Special Fast Track Courts exclusively dealing Corruption Cases should be formed and chaired by a Judge not less than a rank of High Court Judge. All cases pending in various other courts should be transferred to this Court and disposed within a specific time frame. This Court must have the jurisdiction to adjudicate criminal offences or defection/disqualification pending against present and former representatives of State Legislatures or Parliament. All cases against sitting members should be listed on priority daily hearing basis and disposed off within a timeframe of maximum period of three months. Final Verdict should not be reserved or kept pending beyond a period of one week.
10. Last but not least, once any corruption case is filed against any pubic servant or people’s representative, all salaries and allowances including privileges should be withdrawn till the Court delivers its final verdict.